IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.1688/2008 C/W R.S.A.Nos.1668/2008, 1670/2008 AND 1689/2008 IN RSA No.1688/2008: BETWEEN:
1. SRI AJJAMADA CHITTIAPPA S/O LATE MUDDAIAH AGED ABOUT 79 YEARS RESIDING AT KURCHI VILLAGE AND POST SRIMANGALA NAD S. KODAGU – 571 218.
2. SMT. KECHAMADA INDIRA W/O LATE UTHAPPA AGED ABOUT 52 YEARS 3 . SRI KECHAMADA CHENGAPPA S/O LATE UTHAPPA AGED ABOUT 28 YEARS 4 . SRI KECHAMADA SOMANNA S/O LATE UTHAPPA AGED ABOUT 28 YEARS (No.2 TO 4 R/A KANOOR VILLAGE PONNAMPET NAD S.KODAGU) – 571 2118.
(BY MS.LEELA DEVADIGA, ADVOCATE) AND:
1. SMT. THITHIRA SEETHA BHEEMAIAH W/O LATE BEEMAIAH AGED ABOUT 56 YEARS.
2.SRI THITHIRA GANAPATHY S/O LATE BHEEMAIAH AGED ABOUT 33 YEARS 3 . SRI THITHIRA SUBRAMANI S/O LATE BHEEMAIAH AGED ABOUT 34 YEARS 4 . SMT. THITHIRA KAVERAMMA D/O LATE BHEEMAIAH AGED ABOUT 31 YEARS ALL ARE RESIDING AT WEST NEMMALE VILLAGE SRIMANGALA NAD S KODAGU.
5. SRI MAYANAMADA AIYANNA S/O LATE IYAPPA AGED ABOUT 57 YEARS 6 . SRI MAYANAMADA HARISH S/O LATE IYANNA AGED ABOUT 32 YEARS (No.5 & 6 R/O T SHETTEGERI VILLAGE AND POST SRIMANGALA NAD S KODAGU)- 571 218.
…APPELLANTS 7 . SMT. KECHAMADA SUBBAMMA W/O LATE SOMAIAH AGED ABOUT 74 YEARS R/O KANOOR VILLAGE PONNAMPET NAD S KODAGU – 571 218.
...RESPONDENTS (BY SRI SREEPRASAD, ADVOCATE FOR R1 TO R4 SRI R ABHINAVE, ADVOCATE FOR KUMAR & KUMAR FOR R-5 AND R-6, V/O DATED.30.6.2016 APPEAL AGAINST R-7 STAND DISMISSED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.3.2008 PASSED IN R.A.No.21/06 ON THE FILE OF THE CIVIL JUDGE, (SR.DN) AND JMFC, VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.02.2006 PASSED IN O.S. No.55/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), VIRAJPET.
IN RSA No.1668/2008:
BETWEEN:
1. SRI MAYANAMADA AIYANNA AGED ABOUT 58 YEARS S/O LATE AIYAPPA.
2. SRI MAYANAMADA HARISH @ APPANNA AGED ABOUT 33 YEARS S/O AIYANNA BOTH RESIDENTS OF T SHETTIGERI VILLAGE SHETTIGERI POST, SRIMANGALA NAD SOUTH KODAGU – 571 201. …APPELLANTS (BY MR. ABHINAV R, ADVOCATE SRI KUMAR & KUMAR, ADVOCATE) AND:
1 . SRI MANIRA THAMMAIAH AGED ABOUT 59 YEARS S/O LATE KUTTAPPA WEST NEMMALE VILLAGE NEMMALE POST SRIMANGALA NAD SOUTH KODAGU – 571 201.
2 . SRI AJJAMADA CHITTIAPPA S/O LATE MUDDAIAH AGED ABOUT 80 YEARS RESIDENT OF KURUCHI VILLAGE KURUCHI POST SRIMANGALA NAD SOUTH KODAGU – 571 201.
3 . SMT. KECHAMADA SUBBAMMA W/O SOMAIAH AGED ABOUT 75 YEARS.
4 . SMT. KECHAMADA INDIRA W/O UTHAPPA AGED 55 YEARS.
5 . SRI KENCHAMADA CHENGAPPA S/O LATE UTHAPPA AGED ABOUT 29 YEARS.
6 . MASTER KECHAMADA SOMANNA S/O LATE UTHAPPA AGED ABOUT 15 YEARS MINOR, REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT. INDIRA, RESPONDENTS 3 TO 6 ARE RESIDENTS OF KANOOR VILLAGE PONNAMPET NAD SOUTH KODAGU – 571 201. …RESPONDENTS (BY MS. LEELA DEVADIGA, ADVOCATE FOR R-2 & R-4 R-1, 5 AND 6 ARE SERVED V/O DTD. 6.7.2010 LRs. OF R-3) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.3.2008 PASSED IN R.A.No.27/2006 ON THE FILE OF THE CIVIL JUDGE, (SR.DN) AND JMFC, VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.02.2006 PASSED IN O.S No.57/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), VIRAJPET.
IN RSA No.1670/2008 BETWEEN:
1. SRI MAYANAMADA AIYANNA S/O LATE AIYAPPA AGED ABOUT 59 YEARS 2. SRI MAYANAMADA HARISH @ APPANNA S/O MAYANAMADA AIYANNA AGED ABOUT 33 YEARS BOTH RESIDENTS OF T. SHETTIGERI VILLAGE SHETTIGERI POST SRIMANGALA NAD SOUTH KODAGU – 571 201. …APPELLANTS (BY SRI ABHINAV R, ADVOCATE SRI KUMAR & KUMAR, ADVOCATE) AND:
1 . SMT. THITHIRA SEETHA BHEEMAIAH W/O LATE BHEEMAIAH AGED ABOUT 57 YEARS.
2 . SRI THITHIRA GANAPATHI S/O LATE BHEEMAIAH AGED ABOUT 37 YEARS.
3 . SRI THITHIRA SUBRAMANI S/O LATE BHEEMAIAH AGED ABOUT 35 YEARS 4 . SRI THITHIRA KAVERAMMA D/O LATE BHEEMAIAH AGED ABOUT 32 YEARS RESPONDENTS 1 TO 4 ARE RESIDENTS OF WEST NEMMALI VILLAGE SRIMANGALA NAD SOUTH KODAGU – 571 201.
5 . SRI AJJAMADA CHITTAPPA S/O LATE MUDDAIAH AGED ABOUT 80 YEARS RESIDENTS OF KURUCHI VILLAGE KURUCHI POST, SRIMANGALA NAD SOUTH KODAGU – 571 201.
6 . SMT. KECHAMADA SUBBAMMA W/O SOMAIAH AGED ABOUT 69 YEARS.
7 . SMT. KECHAMADA INDIRA W/O UTHAPPA AGED ABOUT 47 YEARS.
8 . SRI KENCHAMADA CHENGAPPA S/O LATE UTHAPPA AGED ABOUT 21 YEARS.
9 . MASTER KECHAMADA SOMAIAH S/O LATE UTHAPPA AGED ABOUT 12 YEARS, MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN SMT. INDIRA RESPONDENTS 6 TO 9 ARE RESIDENTS OF KANOOR VILLAGE PONNAMPET NAD SOUTH KODAGU – 571 201. …RESPONDENTS (BY SRI S R SREEPRASAD, ADVOCATE FOR R1 TO R4 MS. LEELA DEVADIGA, ADVOCATE FOR R05 TO R-7 V/O DTD. 3.3.2011 DECEASED R-6 LRs OF DEFENDANTS R-4, R-9 REP. BY R-7) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.3.2008 PASSED IN R.A.No.26/2006 ON THE FILE OF THE CIVIL JUDGE, (SR.DN) AND JMFC, VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.02.2006 PASSED IN O.S No.55/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), VIRAJPET.
IN RSA No.1689/2008 BETWEEN:
1 . SRI AJJAMADA CHITTIAPPA S/O LATE MUDDAIAH AGED ABOUT 79 YEARS SENIOR CITIZEN BENIFIT RESIDING AT KURCHI VILLAGE & POST SRIMANGALA NAD S KODAGU – 571 201.
2 . SMT. KECHAMADA INDIRA W/O LATE UTHAPPA AGED ABOUT 55 YEARS 3 . SRI KECHAMADA CHENGAPPA S/O LATE UTHAPPA AGED ABOUT 29 YEARS 4 . SRI KECHAMADA SOMANNA S/O LATE UTHAPPA AGED ABOUT 20 YEARS (No.2 TO 4 R/A KANOOR VILLAGE PONNAMPET NADS KODAGU)-571 201.
(BY MS. LEELA DEVADIGA, ADVOCATE) AND:
1 . SRI MANIRA THAMMAIAH S/O LATE KUTTAPPA AGED ABOUT 58 YEARS RESIDING AT WEST NEMMALE VILLAGE AND POST SRIMANGALA NAD S KODAGU – 571 201.
2 . SRI MAYANAMADA AIYANNA S/O LATE IYAPPA AGED ABOUT 57 YEARS 3 . SRI MAYANAMADA HARISH S/O LATE IYAPPA AGED ABOUT 32 YEARS (No.2 & 3 R/O T SHETTIGERI VILLAGE AND POST SRIMANGALA NAD ...APPELLANTS S KODAGU) – 571 201.
4 . SMT. KECHAMADA SUBBAMMA W/O LATE SOMAIAH AGED ABOUT 76 YEARS R/O KANOOR VILLAGE PONNAMPET ROAD S KODAGU – 571 201.
(BY SRI ABHINAV R, ADVOCATE …RESPONDENTS SRI KUMAR & KUMAR, ADVOCATE FOR R-2 & R-3 SRI S R SREEPRASAD, ADVOCATE FOR R-1 V/O 12.3.2013, APPEAL AGAINST R-4 ABATED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.3.2008 PASSED IN R.A.No.22/2006 ON THE FILE OF THE CIVIL JUDGE, (SR.DN) AND JMFC, VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.02.2006 PASSED IN O.S No.57/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN), VIRAJPET.
THESE RSAs COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT R.S.A.No.1688/2008 and R.S.A.No.1670/2008 are directed against the Judgment and decree dated 20.03.2008 passed in R.A.No.21/2006 and R.A.No.26/2006 on the file of the learned Civil Judge (Sr.Dn.) at Virajpet. Similarly, R.S.A.No.1689/2008 and R.S.A.No.1668/2008 are directed against the judgment and decree dated 20.3.2008 passed in R.A. No.22/2006 and R.A.No.27/2006.
2. R.A.No.21/2006 filed by defendant No.3 and legal representatives of defendant No.4 whereas R.A.No.26/2006 filed by the defendant Nos. 1 and 2 are directed against the Judgment and decree dated 24.02.2006 passed in O.S.No.55/1998 by the Principal Civil Judge (Jr.Dn) Virajpet, wherein suit of the plaintiffs for specific performance and mandatory injunction came to be decreed with costs. Since both the appeals were directed against common Judgment passed in O.S.No.55/1998 they were clubbed for disposal through a common Judgment and R.A.No.21/2006 and R.A.No.26/2006 came to be dismissed on 20.03.2008 by the learned Civil Judge (Sr.Dn.) Virajpet, thereby confirming the Judgment and decree passed by the learned Principal Civil Judge (Jr.Dn), Virajpet, in O.S.No.55/1998 on 24.02.2006.
3. R.A.No.22/2006 filed by defendant No.3 and legal representatives of defendant No.4 and R.A.No.27/2006 filed by the defendant Nos. 1 and 2 are directed against the Judgment and decree dated 24.02.2006 passed in O.S.No.57/1998 by the Principal Civil Judge (Jr.Dn) Virajpet, wherein suit of the plaintiff for specific performance and mandatory injunction came to be decreed with costs. Since both the appeals were directed against common Judgment passed in O.S.No.57/1998 they were clubbed for disposal through a common Judgment R.A.No.22/2006 and R.A.No.27/2006 came to be dismissed on 20.03.2008 by the learned Civil Judge (Sr.Dn.) Virajpet, thereby confirming the Judgment and decree passed by the learned Principal Civil Judge (Jr.Dn), Virajpet, in O.S.No.57/1998 on 24.02.2006.
4. Insofar as present appeals are concerned, they are four in number. In order to avoid confusion and overlapping and as a mark of convenience the details of the proceedings are presented in a tabular manner.
4. 1689/2008 filed by defendant No.3 and legal heirs of defendant No.4 dismissed on 20.03.2008 22/2006 filed by defendant No.3 and legal heirs of defendant No.4 dismissed on injunction decreed on 24.02.2006 57/1998 Suit for specific performance and mandatory injunction decreed on 24.02.2006 5. Both the suits in O.S.No.55/1998 and O.S.No.57/1998 are filed seeking specific performance and for mandatory injunction. Since the suits came to be decreed, two regular appeals were filed from O.S.No.55/1998 and two regular appeals were filed from O.S.No.57/1998. Thus four regular appeals were filed. By virtue of dismissal of four regular appeals, present four second appeals are preferred as mentioned above.
Since the matters are interconnected, they are taken up for common disposal.
6. In order to avoid confusion, the parties are addressed with reference to the ranks and status held by them before the trial court.
7. The brief facts of O.S.No.55/1998 are that: on 25.04.1993 defendant No.1 executed an Agreement of Sale in favour of one Thithira M. Bheemaiah to sell Jamma bane land bearing Survey No.94/4 to the extent of 0.10 cents cultivated with coffee, situate at T. Shettigeri Village, Srimangalanad, S. Kodagu, for a sum of Rs.20,000/- and received the entire sale consideration amount from late Bheemaiah and delivered possession of the suit schedule property to him. On 26.04.1993, defendant No.1 also executed a General Power of Attorney in favour of Bheemaiah since the schedule property was Jamma bane in tenure and the registered sale deed could not be executed and registered in favour of said Bheemaiah.
Defendant No.1 had agreed to execute the registered sale deed of the suit schedule property in favour of said Bheemaiah after relaxation of restrictions on registration of Jamma property. The said Bheemaiah died on 02.04.1997 living behind the plaintiffs as his legal heirs and 1st plaintiff is the wife, 2nd and 3rd plaintiff are the sons and 4th plaintiff is the daughter of said Bheemaiah.
8. After the death of Bheemaiah, the plaintiffs continued in possession and enjoyment of the schedule property. They requested for execution of the registered sale deed of the schedule property. Even during the life time of Bheemaiah he requested defendant No.1 and after his death they have been requesting the defendant No.1 to perform his part of contract, but he latter did not respond. The plaintiffs have been ever ready and willing to perform their part of contract to get the registered sale deed in their favour. It is in this connection, on 16.02.1998, plaintiffs sent a registered notice calling upon defendant No.1 to execute the registered sale deed of the schedule property. But it was not complied with. It is also stated that there was no impediment for the registration of Jamma property. On 7.10.1999 court passed the order directing the defendant No.1 not to sell or alienate the suit schedule property to others pending disposal of IA No.2. After the said order, on 4.11.1999 the defendant Nos.1 and 2 without the knowledge or consent of the plaintiffs sold the suit schedule property to defendant Nos.3 and 4, who have purchased the said property fully having the knowledge and notice of possession and the agreement of sale in favour of the plaintiffs (Bheemaiah). Plaintiffs, claim that the said sale deed is not binding on them as it is the result of fraud. In the month for April 2001 defendants 3 and 4 have unlawfully trespassed into the schedule property and illegally put up structure in the suit property by violating the terms of injunction order dated 07.10.1999.
9. The defendants entered appearance and filed written statement. Defendant Nos.1 and 2 admitted execution of the agreement dated 25.4.1993 by defendant No.1 for the sale consideration of Rs.20,000/- in favour of T.M. Bheemaiah. Further the defendants 1 and 2 admitted that on 26.04.1993 defendant No.1 executed General Power of Attorney. But the delivery of possession of the schedule property is disputed. According to them, agreement of Sale and General Power of Attorney were executed as a security for the loan borrowed from T.M.Bheemaiah. The defendants 1 and 2 were in extreme financial crises were compelled to borrow loan from T.M.Bheemaiah as well as Manira Thammaiah. The suit schedule forms 86 cents of coffee land in one compact block fenced along with 60 cents of coffee land. 15 cents of coffee land, totally 1.61 acres in survey Nos.94/4, 94/5, 94/6 respectively in T.Shettigeri Village. The possession of land was not delivered to Bheemaiah or the plaintiff and the agreement was that defendant No.1 would return two times of the borrowed money namely Rs.40,000/- within a period of five years and are ready to pay the amount. But plaintiffs suddenly issued notice to defendants 1 and 2 during February 1998 and it was not paid. It is also stated the schedule property i.e. 10 cents of land cannot be separated from the remaining land. If it is separated, the intrinsic value of the remaining property would be lost and plaintiffs would get an unfair advantage over the defendant Nos.1 and 2. Schedule property is unidentifiable. The defendant Nos. 1 and 2 claim that they are ready to pay the amount of Rs.40,000/-. The schedule property is not a separate and independent one. Plaintiffs are not in possession of the schedule property.
10. Defendant Nos.3 and 4 filed their written statement denying the plaint averments and contending that the plaintiffs are not in possession of the suit schedule property at any time. They have purchased the property measuring 0.15 acres of coffee estate out of 0.86 acres in Sy.No.94/4 of T. Shettigri village from defendant Nos. 1 and 2 for a valid consideration of Rs.75,000/- under the registered sale deed dated 4.09.1999. From the date of registered sale deed, they are in possession of the said property. Defendant No.3 constructed a building and established a service station, driving school in the said property. Plaintiffs have no right over the said property and the boundaries of the property purchased by them and the boundaries of the property purchased by late Bheemaiah are different and in no way connected to the suit property. Plaintiffs have no right over the entire 0.86 acres in survey No.94/4 and they are not necessary parties to the suit.
11. Insofar as other two Regular Second Appeals namely, RSA No.1668/2008 and RSA No.1689/2008 are concerned, they are connected to O.S.No.57/1998 filed by plaintiff-Manira Thammaiah against four defendants namely (1)Mayanamada Aiyanna (2) Mayanamada Harish @ Appanna (3)Ajjamada Chittiappa and (4)Kechamada Uthappa since dead represented by his LRs.
12. Defendant No.1 is the executant of agreement dated 31.05.1994, defendant No.2 is the son of defendant No.1 and defendant Nos.3 and 4 are the purchasers of the suit schedule property pending the suit.
13. Here, the case of the plaintiff is, on 31.5.1994 defendant No1. executed the sale agreement in favour of plaintiff to sell Jamma bane land bearing survey No.94/4 measuring 0.08 guntas cultivated with coffee, situated at T. Shettigeri village, Srimangalanad, S. Kodagu, for Rs.16,000/- and delivered the possession of the suit schedule property in favour of the plaintiff. It is also stated that on 31.5.1994 defendant No.1 also executed the General Power of Attorney in favour of the plaintiff in respect of the schedule property since the suit property is jamma in tenure sale deed could not be executed and registered in favour of the plaintiff.
14. The plaintiff as the purchaser under the agreement of the schedule Jamma bane land pleads the other factors regarding possession, ready and willingness, payment of full consideration to the defendant No.1- seller.
15. Defendant Nos.1 and 2 like in the previous suit (O.S.No.55/1998) admitted the execution of sale agreement for Rs.16,000/- and also the execution of the General Power of Attorney dated 31.5.1994 in favour of the plaintiff. Delivery of possession is denied. It is contended that defendant No.1 was in financial difficulties and they wanted to make improvement of the land in survey No.94/4 along with 60 cents of coffee land totally 1.61 guntas in survey No.94/5, 94/4 and 94/6. Literally the same set of defence as made in OS No.55/1998.
16. Defendant Nos.3 and 4 also took the same set of defence as in O.S.No.55/1998. Thus, the subsequent purchasers defendant Nos.3 and 4 contended that they are in possession and enjoyment of the schedule property by virtue of the registered sale deed dated 4.11.1999 from the defendant Nos.1 and 2 for cash consideration of Rs.75,000/-.
17. The learned trial Judge framed the issues regarding the execution of the sale agreement, ready and willingness, nature of transaction in the agreement and the entitlement for mandatory injunction and answered in favour of the plaintiffs in both the suits as the suits came to be decreed in respect of the schedule property.
18. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P8 on behalf of plaintiffs and oral evidence of DWs 1 and 2 on behalf of defendants in O.S.No.55/1998 and oral evidence of PWs 1 to 3 and documentary evidence of Exs.P1 to P8 on behalf of plaintiff and oral evidence of DWs 1 to 3 and documentary evidence of Exs.D1 to D9 on behalf of defendants in O.S.No.57/1998 .
19. The trial Judge adjudicated the matters on considering execution of the sale agreement, lawful possession, relief sought and entitlement of mandatory injunction against the defendants 3 and 4, recovery of the schedule property from defendants, status of defendants and decreed the suits with costs.
20. In both the suits, defendant Nos. 1 and 2 were directed to execute the sale deed in respect of the suit schedule property in favour of the plaintiff within three months from the date of the said order and also directed the defendant Nos.3 and 4 to demolish the structures put up in the suit schedule property and deliver vacant possession of the suit schedule property in favour of the plaintiff at their cost in both the suits and also ordered that in case the defendants fail to execute the sale deed, plaintiffs are at liberty to get the sale deed executed through the court and in case defendants fails to deliver vacant possession of the schedule property to the respective plaintiffs they are at liberty to execute the decree and to obtain possession.
21. It is against this judgment and decree passed in OS Nos. 55/1998 and 57/2008 the defendant Nos. 1 and 2 and defendant No.3 and legal heirs of defendant No.4 preferred regular appeals as mentioned in the Table which came to be dismissed by the first appellate court.
22. This Court while admitting the appeals on 14.03.2011 framed the following substantial questions of law in RSA No.1670/2008 and 1668/2008:
(i) Whether the judgment of the trial Court affirmed in the appeal is sustainable when the trial Court had not raised a relevant issue based on the material proposition in the written statement disputing the nature of the agreement?
(ii) Without recording a finding as to whether the agreement sought to be enforced was in the nature of an agreement for sale, is the judgment/decree directing for specific performance is sustainable?
23. The same substantial questions of law are raised in RSA Nos.1688/2008 c.w. 1670/2008 and 1689/2008 on 15.11.2016.
In RSA NO.1668/2008, the following substantial question of law has been framed on 14.09.2010:
Whether the court below had overlooked the circumstance pleaded by the appellant to establish that the contract though not voidable gave an unfair advantage to the plaintiff and therefore, the relief of specific performance could not have been granted?
In RSA No.1689/2008 on 7.10.2013 the same substantial question of law has been raised as raised in RSA No.1668/2008.
This Court on 12.6.2019 has raised one more substantial question of law in all these four appeals as under:
Whether time limit mentioned in the sale agreement and the period of readiness and willingness are one and the same or they have same cumulative effect?
24. Now the moot point would be that the defendants 1 and 2 stood under responsibility to establish their assertion, of the sale agreement executed as security for repayment of the loan and that they never intended to the sell the suit schedule property because in the circumstances of the case as the sale agreements and the General Power of Attorney executed in both the suits are not disputed by the defendant No.1 and on the other hand, while admitting sale agreements and General Power of Attorney, they plead that intention was not to execute the sale agreement of the schedule property or to execute the registered sale deed for cash consideration of Rs.20,000/- and Rs.16,000/- respectively and defendant No.1 borrowed said amounts to counter the financial exigencies and as security for repayment of loan, sale agreements and General Power of Attorney were obtained from defendant No.1.
25. What becomes relevant on the contextual part of admission is that, the purchaser under the agreement Bheemaiah in O.S.No.55/1998 is dead and survived by plaintiffs consisting of wife and children of said Bheemaiah. In the peculiar circumstances of the case, it is also pleaded that 10 cents of land which is not sold to the plaintiffs is situated with the schedule property in such a manner if that is separated entire schedule property will loose its value. It is further contended by defendant No.1 that at no point of time he had any intention to execute the registered sale deed in favour of the plaintiffs.
26. Learned counsel for plaintiffs in both the suits would submit that the schedule property were purchased with a honest and absolute intention to possess and to enjoy it and the contentions of the defendant Nos. 1 and 2 that it is a loan transaction is neither proper nor justifiable.
27. Learned first appellate Judge has considered in his judgment that the defendant No.1 has stated in his evidence that at the time of execution of Ex.P1- agreement, he had handed over the possession of 10 cents of land also and it was in possession of the plaintiffs since then.
28. Learned first Appellate Judge has culled out the contents made in the sale agreements in both the suits in his judgment in RA No.21/2006 and 26/2006.
The portion of the contents which is in Kannada meaning thereby:
“On today I have agreed to sell the schedule property to you for Rs.20,000/- and the possession is handed over on today itself and total consideration of Rs.20,000/- is received by the defendants.”
The said translation is in verbatim of the mention made by the learned first appellate Judge.
Similar set of observation is made in RA Nos.22/2006 and 27/2006.
29. The reason for non execution of the registered sale deeds is because it was Jamma property. The restriction for registration of Jamma land was in force from 13.10.1994 to 24.07.1994 and the Deputy Commissioner issued an order dated 20.11.1994 regarding the registration of sale deed in respect of Jamma land.
30. In the totality of the circumstances, it is nothing but the special plea taken by the defendants 1 and 2 to the effect that the amount of Rs.20,000/- and Rs.16,000/- were borrowed requires to be proved to the satisfaction of the court. Thus, in the absence of satisfying explanation and the materials which inspire the confidence of the court, defendant Nos.1 and 2 cannot maintain their stand for appreciation.
31. Insofar as defendant No.3 is concerned, he has purchased the property during the pendency of the suit and also has got a house constructed therein. The first appellate court ignoring the judgment and decree of the trial court in O.S.No.55/1998 and O.S.No.57/1998 dismissed the appeals.
32. The operative portion of the judgment of the first appellate court in RA No.21/2006 and 26/2006 is as under:
“In the result, the RA No.21/2006 and R.A.NO.26/2006 preferred by the defendants are hereby dismissed The judgment and decree passed in O.S.NO.55/1998 dated 24.2.2006 by the Prl.Civil Judge (Jr.Dn) Virajpet is hereby confirmed.
Appellants are granted two months time to handover the possession of the suit schedule property.
Under peculiar circumstances of the case, there is no order as to the costs.
Original Judgment is kept in RA No.21/2006, its copy is kept in RA No.26/2006.
Send copy of the judgment along with lower court records to the lower court.”
The operative portion of the judgment of the first appellate court in RA No.22/2006 and 27/2006 is as under:
“In the result, the RA No.22/2006 and R.A.NO.27/2006 preferred by the defendants are hereby dismissed The judgment and decree passed in O.S.NO.57/1998 dated 24.2.2006 by the Prl.Civil Judge (Jr.Dn) Virajpet is hereby confirmed.
Appellants are granted two months time to handover the possession of the suit schedule property.
Under peculiar circumstances of the case, there is no order as to the costs.
Original Judgment is kept in RA No.22/2006, its copy is kept in RA No.27/2006.
Send copy of the judgment along with lower court records to the lower court.”
33. Thus, the points that require consideration in these appeals are: the effect of sale agreement executed by defendant No.1 in O.S.No.55/1998 in favour of Bheemaiah and similarly, the legal effect of the sale deed dated 31.05.1994 executed by defendant No.1 in favour of plaintiff in O.S.No.57/1998 and the impact of registered sale deed of the suit property in both the suits in favour of defendant Nos. 3 and 4 and whether the defendant Nos.3 and 4 acquire valid right, title, interest and possession from the defendant Nos. 1 and 2.
33. Now that the facts and law thus involved in the cases, mainly on the entitlement of the plaintiffs in both the suits for getting the registered sale deed executed by defendant No.1 in the respective suits and defendant Nos.3 and 4 to join the formers in execution of the sale deed in terms of the sale agreements. The execution of agreements by defendant No.1 on the respective dates are not disputed by the defendants, but not as sale agreement.
34. To the said extent the job become trimmed regarding the analysis of the points of law. Here, the plaintiffs claim their entitlement for ownership having contended that they were inducted into possession of the schedule property by the seller defendant No.1 in both suits. It is equally contended by defendant Nos. 1 and 2 that under the sale agreement the intention of the parties were to borrow amount for their necessities including the improvement of the land. The defendant No.1 seller invariably asserts that they are in possession of the schedule property. However they sold schedule properties to defendant Nos.3 and 4. Thus, the intention of the parties are very important as on the date of agreement. The value of the schedule property as on the date of agreement was Rs.16,000/- and Rs.20,000/- respectively.
35. The nature of schedule property in both the cases are stated to be jamma bane lands. Regard being had to the fact that the extent of schedule property in O.S.No.55/1998 is 10 cents and in O.S.No.57/1998 is 8 cents. Thus, the total extent of land is 18 cents and it is stated to be coffee growing land.
36. The embargo to exclude the schedule property according to the plaintiffs is, the very nature of lands as they are stated as Jamma bane lands which bore restriction against sale without permission. The restriction of sale of jamma bane land was said to have been imposed from 13.10.1987 to 27.7.1994. Thus, there was absolute restriction.
37. The sale agreement dated 31.05.1994 in OS No.57/1998 is perused by the Court. The relevant paragraph typed in Kannada at page No.2 is as under:
“as per the judgment reported by the High Court of Karnataka in ILR 1993 KAR 2959 dated 22.10.1993 regarding the revenue lands of old Coorg and as per Rules 167, 167(1) of the Act No.12/1964, the land revenue act, the transfer of properties in the said area was prohibited from 1.4.1964 because of which there is no impediment for sale of jamma bane land. But as the land was jamma property by virtue of the notification issued by the Revenue Commissioner and Revenue Secretary dated 10.12.1981 and 20.11.1996 the High Court has cancelled the revocations of the ban and the sale deed would be executed at any time after the grant of permission.”
38. In this connection, subsequent to the said judgment referred above in the agreement Government of Karnataka issued the Notification as per Ex.P8 which is as under:
¹-1:EvÀgÉ:391:93-94. f¯Áè¢üPÁjAiÀĪÀgÀPÀbÉÃj, PÉÆqÀUÀÄ f¯Éè, ªÀÄrPÉÃj ¢£ÁAPÀ:27.7.1994. UÉ, G¥À£ÉÆÃAzÀt C¢üPÁjAiÀĪÀgÀÄ, ªÀÄrPÉÃj.
ªÀiÁ£ÀågÉÃ, «µÀAiÀÄ:-¦æ«¯Éeï d«ÄãÀÄUÀ¼À zÁ¸ÁÛªÉÃdÄ £ÉÆÃAzÀt §UÉÎ.
G¯ÉÃR:-1. ¤ªÀÄä PÀbÉÃjAiÀÄ ¥ÀvÀæzÀ £ÀA.£ÉÆAzÀt EvÀgÉ:85:96-94:¢£ÁAPÀ:11.11.1994.
2. F PÀbÉÃjAiÀÄ ¥ÀvÀæ ¸ÀªÀĸÀASÉå ¢£ÁAPÀ: 14.02.1994.
3. ªÀiÁ£Àå GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ°è £ÁåAiÀiÁ®AiÀÄ ¤AzÀ£Á DgÉÆÃ¥À ¸ÀASÉå.769:94 dPÉÌïï PÁgÀå¥Àà ¥ÀƪÀAiÀÄå ©¼ÀÆîgÀÄ UÁæªÀÄ «gÀÄzÀÞ f¯Áè¢üPÁj ªÀÄvÀÄÛ E£ÉÆߧâgÀ ªÉÄÃ¯É ºÀÆrzÀ zÁªÉ.
ªÉÄð£À «µÀAiÀÄzÀ §UÉÎ G¯ÉèÃR(2)gÀ ¥ÀvÀæªÀ£ÀÄß UÀªÀĤ¹j. ¸ÀzÀj ¥ÀvÀæzÀ°è dªÀÄä ªÀÄvÀÄÛ ¨Át d«ÄãÀÄUÀ¼À zÀ¸ÁÛªÉÃdÄ £ÉÆÃAzÀt «ZÁgÀzÀ°è ¤ªÀÄä PÀbÉÃjAiÀÄ G¯ÉèÃR(1)gÀ ¥ÀvÀæPÉÌ ¸ÀA§A¢ü¹zÀAvÉ, F PÀbÉÃj¬ÄAzÀ G¯ÉèÃR(2)gÀAvÉ ¤ªÀÄUÉ §gÉAiÀįÁzÀ ¥ÀvÀæªÀ£ÀÄß vÀPÀët¢AzÀ eÁjUÉ §gÀĪÀAvÉ »AzÀPÉÌ ¥ÀqÉAiÀįÁVzÉ. DzÀÝjAzÀ dªÀÄä ªÀÄvÀÄÛ ¨Át d«ÄãÀÄUÀ¼À §UÉÎ jmï Cfð 3939:88:¢£ÁAPÀ:22-10-1993gÀ®Äè DVgÀĪÀ DzÉñÀzÀAvÉ PÀæªÀÄ vÉUÉzÀÄPÉƼÀî®Ä w½¹zÉ.
¤ªÀÄä £ÀA§ÄUÉAiÀÄ, f¯Áè¢üPÁjAiÀĪÀgÀ ¥ÀgÀªÁV PÀ.¥Àæ . d.C. PÉÆqÀUÀÄ f¯Éè, ªÀÄrPÉÃj.
Meaning thereby, the office of the Deputy Commissioner, Kodagu District, vide their notification bearing No.C1:Ithare:391:93-94 dated 27.07.1994 regarding sale of agricultural lands. Reference are made about the letter No.85/93-94 dated 11.01.1994 from the Sub-Registrar, Madikeri, letter dated 14.02.1994 by the Deputy Commissioner and judgment passed by the High Court of Karnataka in CCC No.769/1994 in the case of Jekkera Karyappa Poovaiah, Bellur village Vs. Deputy Commissioner and another withdrawing letter dated 14.02.1994 with immediate effect and directed to take action in pursuance of the order made in WP No.3939/1988 dated 22.10.1993.
39. The execution of Sale agreement in both the cases are established and further fortified by the admission of the executant but in a separate way to the effect that their family was ridden by financial crises and to counter the same, financial assistance was obtained from the plaintiff (Bheemaiah) and the document title was sale agreement and with any understanding it was both the agreements were executed as a security for repayment of loan that was said to have been borrowed by defendants.
40. In this connection it is necessary to place on record that whenever document is relied upon as proof of liability of the defendant and if it is denied in tandum it would be the onus on the plaintiff to establish. However when execution is admitted by the executant but not in terms as claimed by the plaintiff but on a separate context as it has happened in the present case and defendants 1 and 2 have taken up a special plea to explain the circumstances under which the said sale agreements came into existence i.e., in respect of loan agreement. When such stand is taken by the defendants 1 and 2 the onus on plaintiffs gets trimmed down. It would be for the defendants who takes up the special plea to discharge the burden regarding special plea that nullifies the stand taken by the plaintiffs.
41. It is the contention of the defendants 1 and 2 that they had not executed sale agreement as there was no intention to sell the schedule property. This conduct of the defendants 1 and 2 is not appreciable for the very reason that they have already gone on record for having sold the schedule property in both the cases to defendants 3 and 4 more over in contravention of the interim orders passed by the court against such alienation. Thus, very assertion of the defendants 1 and 2 that they never wanted to sell the schedule property cannot be believed. Insofar as defendants 3 and 4 are concerned they are made parties in both the cases as they are the purchasers of the schedule property under the registered sale deed for consideration. The claim of the plaintiffs in both suits to direct the defendants 3 and 4 to join the defendants 1 and 2 to execute the registered sale deed as the presence of those two sale deeds would harm their interest over the schedule property.
42. In this connection the stand of the subsequent purchasers defendants 3 and 4 is denial of sale agreemenst. The denial is also to be examined in a case whenever particular pleadings of the plaintiff is denied. It is also to be examined whether person who denies is competent to do so to ascertain relevancy of further consideration. Here the agreements were executed by the defendant No.1 and in a suit for specific performance they admit the execution but the intention of the agreement is denied. Thus, it is not a denial in tandum. When such is the case, the subsequent procedures, defendants material denial is of execution. Thus, denial looses its significance. Insofar as the ban of Jamma bane lands it is necessary to mention that the denial was upto a particular period as stated in Ex.P-8 (D.C.letter) In this connection it is necessary to refer the following decision of the Full Bench of this court.
ILR 1993 Kar 2959 – Cheekere Kariyappa Poovaiah Vs State of Karnataka 43. By this time it is crystal clear that ban was not an absolute one on the other hand the restriction period was from 13.10.87 to 27.07.94.
The same is conclusive on the fact that the restriction was lifted and the schedule property was freely alienable or registerable.
44. More so it is further fortified by the execution of registered sale deed of the defendants 1 and 2 in each of the cases in connection with the respective schedules under the registered sale deed dated 04.11.99. In this connection the material on record when perused with reference to submission made suggest that the relevant issues were raised before the trial court. The nature of the agreement has been discussed both by the trial court and appellate court as well.
45. The question of importance of time in this case would be date of execution of the sale agreement in both the cases and the embargo on registration of sale deed the agreement was entered into on 25.04.93 in O.S.No.55/98 and 31.05.94 in O.S.No.57/98, in the result time was not the essence.
46. In both the agreements parties have agreed to the effect that by the time the notification issued by the Revenue Commissioner dated 20.11.86 and ban on registration was relaxed on 27.07.94 sale deed could be effected. As stated earlier during the subsistence of sale agreement that was entered into between defendants 1 and 2 in favour of deceased Bheemaiah there was no question of sale deed being executed by the same defendants in favour of defendants 3 and 4 that to much against the interim order passed by the trial court. In the whole circumstances of the case it is the Judgment and decree passed by the learned trial court or the Judgment and decreed passed by first appellant court are neither infirm nor illegal or do they suffer from lacunae.
47. Deputy Commissioner’s order under Exhibit P-8 is clear and unambiguous i.e., further fortified by the very registered sale deed executed by defendants 1 and 2 regarding relaxation of ban on Jamma bane lands. Insofar as execution of the sale deeds are concerned it is seen both are admitted but the question that is posed by the defendants regarding execution and legal effect of the agreements apparently has no value.
48. In the circumstances the defendants 3 and 4 being the purchasers also have their responsibility to join the defendants 1 and 2 for execution of sale deeds in favour of plaintiffs in both the suits. Substantial questions of law accordingly.
Appeals are hereby dismissed. In the result no costs.
Judgment and decree dated 20.03.2008 passed in R.A.Nos.21/2006 and 26/20016 by the first appellant court and Judgment and decree dated 24.02.2006 passed in O.S.No.55/98 and O.S.No.57/98 by the trial court are confirmed.
Sd/- JUDGE SBN/tsn*